Posts Categorized: ethics

While most of us still may be thinking about yesterday’s turkey dinner right now, at Alliance for Justice we’re also thinking about ducks – as in “if it looks like a duck and quacks like a duck …” and chicken, as in the rubber variety often served at fundraising dinners.

What brings all this poultry to mind is the response of the Federalist Society when Alliance for Justice and Common Cause pointed out that, for the second year in a row, a justice of the United States Supreme Court was headlining its annual fundraising dinner. Were any other federal judge to do this, it would be a violation of the Code of Conduct for federal judges – but Supreme Court justices are exempt.

The fact that the event was a fundraiser is crucial. We have no problem with Supreme Court justices speaking at events, even when they are hosted by groups with a strong ideological point of view. Where they cross the line – and ignore the code of conduct – is when their appearance is used to raise money for the organization.

That’s a curious response given what one finds on the program for the event. More than 35 major corporations and prominent law firms are listed as “sponsors” of the event. There are Bronze Sponsors” like Covington and Burling and the Lincoln Financial Group, “Silver Sponsors,” including Jones Day, Patton Boggs, PepsiCo and Facebook, and “Gold Sponsors,” including Chevron, Verizon and Sullivan & Cromwell. Topping them all is the “Sponsoring Law Firm,” Gibson, Dunn & Crutcher.

So either the hotel where the dinner took place serves the world’s most expensive rubber chicken – or it was a fundraiser.

It’s no wonder that, when the Federalist Society said much the same last year, when Justices Clarence Thomas and Antonin Scalia headlined the dinner, Matt Wuerker, the Pulitzer Prize-winning cartoonist for POLITICO didn’t buy it:

(c) Matt Wuerker

When it comes to the ethics of speaking at a fundraiser, the success of the event doesn’t matter. As Prof. Stephen Gillers of New York University School of Law explained in an analysis written for AFJ:

It may turn out that the organization is disappointed because the event does not earn a profit. But that is irrelevant. Judges have an obligation in the first instance to assure themselves that the event will not be a fundraiser.

It all illustrates, once again, why it’s so important to make the provisions of the Code of Conduct binding on Supreme Court justices. Since it doesn’t appear likely that the justices will do this themselves, Congress should do it for them.

Alito speaks at Federalist Society fundraiser, following in ethically-challenged footsteps of Scalia and Thomas

AFJ and Common Cause released this statement today:

From the Federalist Society website

WASHINGTON, D.C., Nov. 16 – For the second year in a row, a justice of the Supreme Court has flouted judicial ethics by headlining a fundraising gala for a lawyers group, the Alliance for Justice and Common Cause said Friday.

Justice Samuel Alito was a featured speaker at the “30th Anniversary Gala Dinner” of the Federalist Society on Thursday night. Alito’s appearance was the drawing card for the $175-dollar-a-plate event, the society’s website indicates.

Were Justice Alito sitting on any lower federal court, his appearance would violate Canon 4C of the Code of Conduct for federal judges. That canon explicitly bans federal judges from being featured speakers and guests of honor at fundraising events. The code does not formally apply to the Supreme Court however.

Last year, Justices Clarence Thomas and Antonin Scalia spoke at the same Federalist Society fundraising event. The annual dinners attract a crowd of more than 1,200 lobbyists, judges and lawyers, including some with high-profile cases before the court. Attendees at Thursday’s dinner, for example, included at least three lawyers involved in cases challenging the constitutionality of the federal Voting Rights Act. Their Washington-based firm, Wiley Rein LLP, was a “silver” sponsor.

Justice Alito has become a regular at such functions, having previously spoken at fundraising events for the American Spectator magazine and the Intercollegiate Studies Institute. The Institute describes itself as working for “limited government, individual liberty, personal responsibility, the rule of law, market economy and moral norms.”

Alliance for Justice President Nan Aron noted that a 2012 Hart Research Associates poll conducted for AFJ found that only 41% of Americans approve of the job the Supreme Court is doing. “If the public begins to believe that the justices are just politicians in robes, their credibility will further erode.”

“In his 2011 Annual Report, Chief Justice John Roberts claimed that ‘All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations,'” Aron said. “But it is clear that they are free to routinely ignore that guidance. That’s why guidance is not enough. Either the justices should formally agree to abide by the Code or Congress should require it.”

“The words ‘Equal Justice Under Law,’ are carved into the marble above the entrance to the Supreme Court,” said Common Cause President Bob Edgar, “but it’s clear that when it comes to judicial ethics, some members of the court consider themselves better than equal to the rest of the federal judiciary. Their refusal to embrace and abide by the Code of Conduct is disturbing.”

Edgar and Aron emphasized that addressing an organization like the Federalist Society is not, in itself, a breach of ethics. The ethical line is crossed when the justice’s appearance is used to raise money for the organization.

As Tony Mauro reports in The National Law Journal, the lack of transparency in Supreme Court recusals – decisions by the justices not to participate in some cases – continues to attract public attention as the justices delve into high-profile cases. The New York City Bar Association issued a report this month calling for the justices to publicly disclose explanations for their recusal decisions, including decisions both to participate and to recuse. As the report explains:

Opening the Court’s ‘black box’ in this limited respect will help the parties and the public to have confidence that the judicial oath to hear cases ‘faithfully and impartially’ is honored in practice by the highest court in the land.

Currently, the justices’ decision to recuse or participate in a given case truly is a “black box.” Each justice is the sole decider of whether or not to recuse, and there is no requirement that he or she explain this determination. Furthermore, the justices are not bound by the same Code of Conduct that applies to every other federal judge. The result is a process that lacks accountability and transparency for the nine most powerful jurists in America.

As the New York City Bar Association report notes, transparent and public recusal decisions would “achieve the dual purpose of informing the public of the justice’s reasoning and forcing the justice to examine his or her biases.” Additionally, in an era in which the Court is increasingly viewed as a political institution by a skeptical public, “[w]hile there may be some negative public reaction to certain disclosures, on the whole additional transparency should improve the public’s perception of the court.”

Tuesday, Alliance for Justice screened “A Question of Integrity: Politics, Ethics and the Supreme Court” at Catholic University of America’s Columbus School of Law in Washington, D.C. The screening hosted by the law school’s America Constitution Society chapter was enthusiastically received by over 70 law students eager to know more about the Code Conduct for U.S. Judges and why the Court is not required to follow it, as well as the Ethics in Government Act and the current process for recusal.

AFJ’s Dorot Fellow Ashley Smith led the discussion period fielding thoughtful, challenging questions about the need for more transparency in the recusal process, if justices attending fundraising events adds to more transparency rather than hinders it, and if politics have invaded this current court so thoroughly that it’s not just infeasible but naïve for litigants to demand or even expect impartiality to still be the law of the courtroom.

CUA law professor Suzette Malveaux introduced the film and even asked a few tough questions herself about the inevitability of friendships between justices and other powerful government officials and the practicality of requiring every justice who has a relationship with an official to recuse. Ms. Smith’s response was, “Not every justice; just the ones who know that the official will appear in his or her court before they agree to go duck hunting with him!”

The discussion ended with the hope, but not a full-fledged demand, that all justices, conservative or liberal, be held to the highest ethical standards. “A lot of it I have a problem with, a lot of it I don’t. It’s not so black and white,” as one student said after the screening.

But when it comes to ethics and the highest court of the land, too much gray can be the difference between maintaining this country’s legacy of belief in an impartial and unbiased system of law, or turning our backs on it. However, as Prof. Malveaux suggested, the discussion itself helps assure us that the legacy will continue.

Alliance for Justice President Nan Aron yesterday joined members of Congress, several concerned organizations, 212 law professors, and over 100,000 citizens in calling for the Supreme Courtto voluntarily agree to formally adopt the Code of Conduct for U.S. Judges and put an end to the ethical ambiguity that has damaged public confidence in the Court and its justices.

Speaking at a press conference on the steps of the Supreme Court along with Congresswomen Louise Slaughter and Eleanor Holmes Norton and Congressman Earl Blumenauer, Aron called for immediate ethics reform, saying, “It’s no secret that this is going to be a landmark year for the Supreme Court. There will be big cases and intense public scrutiny. If there ever was a time for the Court to buttress public confidence in its propriety and objectivity, this is it. With so much at stake, there must be no hint of favoritism or bias. We can’t afford to have any questions of integrity looming over the justices.”

Joined by Democratic Rep. Earl Blumenauer of Oregon and Democratic Del. Eleanor Holmes Norton of the District of Columbia, [Rep. Louise] Slaughter said 31 members of Congress have signed a letter to Chief Justice John Roberts urging the court to formally adopt a judicial code of ethics…

Similar letters have been sent by government watchdog groups and more than 200 law professors.

The letters were prompted by reports over the last three years that Supreme Court justices have spoken at fundraisers for advocacy groups such as the Federalist Society, the Intercollegiate Studies Institute, the Heritage Foundation and the National Association of Broadcasters.

With controversial cases pending this year involving affirmative action and the constitutionality of the 2010 health care reform law, “there should not even be a hint of bias or favoritism’’ on the court, Nan Aron, president of the Alliance for Justice, said.

In addition, Professor William Yeomans of the Washington School of Law at American University, unveiled a letter signed by 212 law professors asking the Supreme Court itself to initiate the process of formally adopting the Code of Conduct. A copy of the letter can be downloaded here.

Following the press event, Alliance for Justice co-hosted a briefing for Congressional staffers. The briefing featured an all-star panel consisting of Yeomans, Dahlia Lithwick of Slate, and Sherrilyn Ifill of the University of Maryland.

Many of the issues raised in the press conference and the staff briefing are addressed in AFJ’s short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court. You can watch the entire film online at YouTube now.

Yesterday, Chief Justice John Roberts told Senate Judiciary Committee Chairman Patrick Leahy and the American people that the Supreme Court of the United States, apparently alone among all institutions of American government, doesn’t need formally binding ethics rules and has no intention of adopting any. In a terse statement, the Chief Justice flatly rejected a recommendation by Chairman Leahy and Senators Durbin, Whitehouse, Franken, and Blumenthal that the Court voluntarily, explicitly, and formally adopt the same Code of Conduct that governs every other federal judge.

All federal judges are required to abide by a set of ethics rules spelled out in the Code, which includes many general guidelines, and also specific common-sense prohibitions on engaging in political activity and being active participants in fundraisers. These rules are designed to protect individual judges–and the judicial system as a whole–from even the appearance of partiality or impropriety so that the American people can have complete confidence that federal judges act without personal bias or political agenda.

But there are nine federal jurists who are exempt. The Code does not formally apply to the Supreme Court of the United States, except, perhaps, as “guidance.”

Because the Code has never been formally adopted by the Court, it may be followed–or not–at the whim of individual justices, the chief justice’s assertions that justices are always models of ethical behavior notwithstanding.

Regrettably, the record shows that even though justices have asserted that they abide voluntarily by the Code, the recent behavior by several of them demonstrates that either they don’t understand its provisions or they are willing to ignore them. When Antonin Scalia and Clarence Thomas feel comfortable attending political strategy meetings of the Koch Brothers and Samuel Alito willfully headlines fundraisers for conservative organizations, it’s clear that the provisions of the Code explicitly banning exactly that kind of behavior are not taken seriously.

Chief Justice Roberts’ statement today ensures that ambiguity, confusion, and uncertainty will continue to characterize the ethical environment of the Supreme Court. His decision will only serve to undermine confidence in the integrity of the Court in a year packed with high-profile cases of enormous importance and add to a growing public perception that our democratic institutions are increasingly opaque and unaccountable.

No harm can come from volunteering to formally and strictly adhere to the same rules that every other judge abides by. Saint Augustine wrote of laying the “foundation of humility.” If the Court wants to rebuild its slipping reputation, that wouldn’t be a bad place to start.

The Alliance for Justice and ten other reform-minded organizations have sent a letter to the justices of the Supreme Court calling upon them to formally and voluntarily bind themselves to the Code of Conduct for United States Judges.

The Code of Conduct applies to all other members of the federal judiciary; only the nine justices of the Supreme Court are exempt. The members of the Court state that they look to the Code for guidance and act as if bound by it; however, behavior by some of the justices, including attending and speaking at overtly political gatherings and participating in fundraisers, belies this claim.

We call on the justices of the Supreme Court to take affirmative action to assure the public of their commitment to the highest standards of ethics by formally adopting and binding themselves to the Code of Conduct, action they can, and should, take on their own.

Today in the Huffington Post, AFJ President Nan Aron took a look at Chief Justice John Roberts’ annual report on the federal judiciary. In his most recent report, Chief Justice Roberts devoted a fair amount of time to the ethics concerns AFJ and others have been raising in recent months. Unfortunately, as Nan documents, the chief justice’s defense of his colleagues’ behavior misses the mark.

Unfortunately, in spite of substantial evidence to the contrary, the message from Roberts is that he sees no ethics problem at the Court and that no reforms are needed or desirable. Besides, he inferred, no one can make rules for us anyway.

Over 140 law professors, newspaper editorial boards, and groups like Alliance for Justice, Common Cause, and others, have called for increased accountability and transparency from a Court that is steadily and alarmingly losing the trust of the public. The Chief Justice’s casual dismissal of the ethics issues as the consequence of “misconceptions” will further erode the Court’s credibility.

Calls for reform have been precipitated by a series of actions by some justices that call into question their judgment about ethical matters. For example, Justices Antonin Scalia and Clarence Thomas famously–or infamously–attended events at overtly political strategy conferences hosted by the Koch Brothers, and Justices Scalia, Thomas, and Samuel Alito have headlined and lent their name and prestige of their office to fundraising events for conservative organizations. These activities are expressly prohibited by the Code of Conduct that governs all federal jurists. The Code contains both general and specific ethical rules for all federal judges–except the nine members of the Supreme Court.

The Chief Justice maintains that in spite of their exemption, “All members of the Court do in fact consult the Code of Conduct in assessing their ethical obligations.” But the record shows that while some of them may consult it, they apparently don’t feel compelled to actually follow it. That’s’ why reformers are calling on the Court to agree to be formally bound by its provisions.

AFJ Calls on Chief Justice Roberts to Address Ethics Issues in His Annual State of the Judiciary Report

Washington, D.C., December 22, 2011—Alliance for Justice President Nan Aron today issued the following open letter to Chief Justice John Roberts in advance of the release of his annual Year-End Report on the Federal Judiciary:

Dear Mr. Chief Justice:

With the time fast approaching for your annual Year-End Report on the Federal Judiciary, I am writing on behalf of Alliance for Justice to respectfully urge you to take advantage of this important opportunity to address questions that have arisen about the ethical standards governing the Supreme Court. We, among many others, are growing increasingly concerned that the recent decline in public approval of the Court is due in part not only to the well-publicized and ethically questionable actions of some justices, but also to the lack of clear and unequivocal precepts governing justices’ behavior.

As you know, all other federal jurists are subject to the Code of Conduct for United States Judges, yet the Supreme Court, our nation’s most important legal institution, is currently exempt. We understand that several justices and Court spokespeople have made public statements that the Code is used as guidance and that justices voluntarily follow its rules, but the recent record demonstrates that either that is not true for all justices or there is a lack of understanding of what the Code requires. For example, Justices Antonin Scalia and Clarence Thomas recently attended a fundraising dinner at which they were the honored guests and main speakers, and allowed their names and images to be used to publicize the event. All of these activities are prohibited by Canon 4C of the Code, which states that “a judge should not personally participate in fund-raising activities,” and which goes on to specify in commentary that a judge “may not be a speaker, a guest of honor, or featured on the program” of a fundraiser.

Incidents like this one demonstrate the need for clarity and certainty about the ethical standards which bind the Court. The nation can ill-afford to allow ethical uncertainties to cloud public perceptions of the Court, its justices, and, the decisions they make. The simplest, most direct approach is for the Court itself to make an explicit public declaration that the Code of Conduct governs justices’ behavior and to formally adopt it as the Court’s own rule.

We urge you to take the occasion of your 2011 Year-End Report to restate the Court’s obligation to maintain the highest ethical standards and to make a commitment to beginning the process of finally and officially adopting the Code of Conduct.

Sincerely,

Nan AronPresident, Alliance for Justice

* * *

Alliance for Justice has prepared a background report on the Federalist Society fundraising dinner of November 10, 2011, at which Justices Antonin Scalia and Clarence Thomas were the guests of honor, and which has the hallmarks of an activity that is prohibited by the Code of Conduct for United States Judges. It is available online at: www.afj.org/FederalistFundraiser.

In addition, extensive background materials on Supreme Court ethics rules and current controversies are available for download at www.aquestionofintegrity.org. The issue is also discussed in AFJ’s new short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court, which can be viewed online.

On Monday evening, Alliance for Justice teamed with California Common Cause and CREDO Action for the screening of the new AFJ film “A Question of Integrity: Politics, Ethics, and the Supreme Court.” After the screening of the film, there was a panel discussion featuring experts on the issue, followed by a Q&A with the audience.

Lee Fang, the investigative researcher and blogger at ThinkProgress who discovered the participation of Justices Thomas, Alito, and Scalia at secret meetings, including big-ticket fundraisers held by conservative political funders, explained how he had been investigating the Tea Party in 2009 when he learned that the billionaire Koch brothers and various industry groups were funding Tea Party activism. Then, in October of 2010, Fang received an anonymous package about a Koch brothers policy summit being held in Southern California in early 2011. Digging deeper, Fang found that these events had been taking place regularly, and had advertised the presence of Supreme Court Justices Thomas and Alito. Fang actually confronted Justice Alito at one of these events, asking him whether he felt like his presence there was appropriate, to which Justice Alito responded that his presence there was “not important.”

Richard Zitrin, Professor in Legal Ethics at the University of California-Hastings, said it is unconscionable that Supreme Court justices would be taking part in these kinds of activities, which would violate the Code of Conduct for U.S. Judges that applies to all other federal judges. Zitrin was adamant that, because Supreme Court justices are afforded such respect by our legal system, it makes no sense to hold them to a lower standard than other federal judges when it comes to the appearance of impropriety.

Derek Cressman, the Western States Regional Director at Common Cause, has been on the trail of the Kochs – and many of their ethically questionable political practices – since the revelation of their secret retreats. He noted that Supreme Court justices should not have to sequester themselves, but they should refrain from participating in events where they appear to be cozying up to major political funders.

Judge Marilyn Patel, showed deference to her colleagues on the bench and did not address calls for justices to resign, but she explained that, for justice to be administered, there cannot be any appearance of judicial impropriety. She added that there is a strong argument that the Code of Conduct as it is currently written is actually applicable to Supreme Court justices, notwithstanding the justices’ current view that it is not binding. Moreover, she explained that, because Supreme Court justices are given lifetime tenure, we need to confirm justices who will uphold high ethical standards.

Zitrin suggested that, although he generally does not like litmus tests for determining judge qualifications, pledging adherence to the Code of Conduct, whether or not it is currently required of the justices, should be necessary for any nominated justice to be confirmed in the Senate.

Asked about the distinction between appearing at an event and at a fundraiser, Judge Patel cited guidance by the Administrative Council of Courts advising against participation by judges as keynote speakers at fundraisers for nonprofits. As far as whether it is hard to determine if an event is a fundraiser, she noted that she confirmed with Alliance for Justice that Monday’s film screening and panel discussion was not a fundraiser before agreeing to participate. She also said that if a judge is asked to speak at a $250 per plate event, that event is obviously a fundraiser, and any judge who is unable to determine that would “really be out of touch.”

Judge Patel noted that some people oppose recusal by Supreme Court justices because they cannot be replaced by another judge when they abstain from hearing a case. She responds to that argument by pointing out that if the justices were to simply comply with the Code of Conduct, there would rarely be a need for them to recuse themselves.

The film premiered in Washington on November 1, and a New York premiere screening is planned for early December. Stay tuned for more information on future screenings!

If they were mere federal judges they could not have accepted the invitation, because Canon 4(C) of the Code of Conduct for United States Judges prohibits personal participation in fundraising activities. It states that judges should not “solicit funds for any organization, or use or permit the use of the prestige of judicial office for that purpose.”

It’s an excellent rule and it would apply to the Federalist Society’s $175 a plate, sold-out dinner, which is clearly a fundraiser, with Justices Scalia and Thomas the star attractions in the black-tie optional event billed as “A Celebration of Service.”

The problem is that Supreme Court justices are not bound by Canon 4(C).

There’s nothing stopping the Court from voluntarily adopting the same Code of Conduct that binds every other federal court, and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming “politicians in robes.”

The Code of Conduct for U.S. Judges lays out ethical guidelines to protect the integrity of our judicial system, and its rules bind every federal judge… except nine. Can you guess which?

That’s right… the Code of Conduct for U.S. Judges applies to every federal judge except the nine justices of the Supreme Court.

As Slate.com Senior Editor Dahlia Lithwick put it in AFJ’s latest film, “When you tell people that the Code of Conduct applies to everyone but Supreme Court justices, they think it’s a joke. That’s how preposterous it is.”

Several Supreme Court justices have recently made headlines by engaging in behavior that likely would not be permitted if they sat on lower courts.

Justice Alito has headlined fundraisers for right-wing groups such as the American Spectator magazine.

Justices Scalia and Thomas attended political strategy and fundraising conferences hosted by the ultra-conservative billionaire Koch brothers. The justices have also allowed their names to be used to draw attendees.

There’s nothing stopping the Court from voluntarily adopting the Code of Conduct and putting an end to the kind of behavior that has left many Americans wondering if Supreme Court justices are becoming “politicians in robes.”

Reform can happen. The same Code of Conduct that’s good enough for every other federal judge is good enough for the nine justices of the Supreme Court. Take action today and make sure that Chief Justice Roberts understands that his Court faces a question of integrity… and that his answer can protect the Court from harmful poltical influence.

Last night in Washington, Alliance for Justice premiered our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices, and explores the need the need to apply the same ethical standards that govern every other judge in the federal court system to the nation’s highest court. Viewers are called to action in support of reforms essential to preserve the integrity of our most important legal institution.

The film played to a full room at Washington’s historic E Street Cinema, and was followed by a lively question-and-answer session with Slate Senior Editor Dahlia Lithwick and American University Fellow in Law and Government William Yeomans. (Due to severe weather in the northeast, Congressman Chris Murphy of Connecticut was unable to attend.)

Lithwick and Yeomans took questions from the audience on the film, on questions of recusal surrounding the upcoming health-care case, and on why the issue of judicial ethics matters so much. Several attendees asked whether or not Congressional action on judicial ethics could raise serious separation of powers issues. Yeomans pointed out that the current recusal statute (which does apply to the Supreme Court, though individual justices are the sole determiners of whether or not it applies in each case) was established by Congress, and Lithwick pointed out that the justices could sidestep that point entirely by voluntarily adopting the same Code of Conduct that already applies to every other federal judge.

Alliance for Justice is proud to release our latest short documentary film, A Question of Integrity: Politics, Ethics, and the Supreme Court.

A Question of Integrity examines growing concerns about ethically questionable and overtly political behavior by some Supreme Court justices and explores the need to apply the same ethical standards that govern every other judge in the federal court system to the nation’s highest court.

Today, Congressman Chris Murphy and 42 of his colleagues called on the House Judiciary Committee to hold hearings on the need for Supreme Court ethics reform. Their open letter to committee leaderhsip noted that the alarming behavior of some justices, such as attending political events and fundraisers, “undermine the integrity of the entire judiciary, and they should not be allowed to continue.”

The House members urged the House Judiciary Committee to hold a hearing to consider the Supreme Court Transparency and Accountability Act, which would require Supreme Court justices to follow the same ethical rules as all other federal judges, and reform the Court’s recusal process. The full text of the House members’ letter is available here.

In March, AFJ President Nan Aron joined with Congressman Murphy to announce the Supreme Court Transparency and Accountability Act. Since then, the issue has continued to draw public and media attention.

Eric Lichtblau of the New York Times Caucus Blog has this on today’s Dear Colleague letter. The letter is the latest in mounting calls for Supreme Court ethics reform. As Lichtblau notes:

The notion of imposing higher ethics standards on the Supreme Court appears to be gaining momentum among House Democrats and outside legal scholars, but its prospects in the Republican-controlled House are still uncertain.

Calls for ethics reform have increased as more and more accounts of ethically questionable conduct by some of the justices continue to be revealed. The NYT Caucus Blog reported that:

Justice Thomas has received the most recent scrutiny not only for his appearances before Republican-backed groups, but also for his acceptance of favors from a prominent conservative contributor in Texas, Harlan Crow, and his wife’s work as an advocate for conservative legal causes.

Alliance for Justice has been a leader in calling for Supreme Court ethics reform. AFJ’s upcoming film A Question of Integrity: Politics, Ethics, and the Supreme Court, narrated by actor, director, and activist Edward James Olmos, will explore the increasing politicization of the Court, and calls on viewers to support changes to help protect public confidence in the Court. Click here to learn more about Supreme Court ethics reform.

Today, Alliance for Justice, along with the Bay Area Lawyer Chapter of the American Constitution Society and California Common Cause, held a panel discussion on Judicial Ethics and the Supreme Court. This event, hosted in the San Francisco offices of the law firm Bingham McCutchen, featured Nan Aron, President of Alliance for Justice, Derek Cressman of California Common Cause, and Richard Zitrin, Lecturer in Law at UC Hastings and Former Director of the Center for Applied Legal Ethics, University of San Francisco School of Law.

The discussion focused on recent questions about bias and impartiality of Supreme Court justices, including reported incidents of justices failing to make true and accurate disclosures of gifts and/or spousal income, as well as reports of their attendance at partisan events. These indiscretions, and others, raise issue as to the impartiality of the justices who, unlike judges sitting on the lower federal courts, are not bound by the federal Code of Conduct for United States Judges. According to the Supreme Court, this Code of Conduct is deemed merely advisory by the justices on the highest court in the country.

Derek Cressman of California Common Causediscusses his organization’s efforts to revealjustices’ violations of ethical conduct.

The panelists explained the very real implications of having a Supreme Court whose members are not only without a code of ethics, but have been untruthful in the disclosure reports that they are required to provide. As a means of addressing this issue, the panelists and audience members engaged in a lively Q&A session in which they discussed the possibilities of legislative reform and the possibility of presenting nominees to the Supreme Court with a pledge to abide by the Code of Conduct upon confirmation.

Audience members included lawyers and activists, and were eligible to receive 1.0 CLE credits for their attendance.

Panelists and audience members agreed that members of the federal judiciary, including Supreme Court justices, should be allowed and encouraged to participate in events such as educational seminars and meetings sponsored by issue based organizations, but that the appearance of the Supreme Court’s independence and impartiality is undermined when its Justices are held to a lower ethical standard.

On June 24, 49 Republican representatives sent a letter to the House Judiciary Committee Chairman Lamar Smith (R-TX), requesting an inquiry into Justice Elena Kagan’s ability to rule on the constitutionality of the Patient Protection and Affordable Care Act (PPACA). In response, Rep. Smith sent a letter to Attorney General Eric Holder, demanding documents pertaining to Justice Kagan’s role in the PPACA while she served as Solicitor General.

The partisan purpose of this inquiry is exceedingly transparent: House Republicans are trying to force Justice Elena Kagan’s recusal from an expected Supreme Court hearing of the challenges to the health-care law. This is politics at its worst and shows that the radical right is prepared to use any means necessary to rig the outcome in the Supreme Court. This is not the first attempt that has been made by Republicans to smear Justice Kagan and prevent her from hearing the much-awaited case. CNSNews, a right-wing news outfit, tried the same tactic last year when it filed a Freedom of Information Act (FOIA) with the Solicitor General’s Office demanding documents relating to Kagan’s participation in the health care legislation.A review of the documents released by the Solicitor General in response to this request makes one thing clear: there is no evidence to suggest that Justice Kagan had any personal participation in the health-care case that would warrant her recusal. In fact, Justice Kagan has distinguished herself as being particularly interested in avoiding the appearance of impropriety, having already recused herself from over 20 cases in her first term on the bench.

House Republicans may have another motivation for these partisan inquiries directed at Kagan: they divert attention from more serious ethical problems that face the Supreme Court.

First, though Justice Kagan is not one of them, there actually are justices on the Court who have demonstrated a stubborn reluctance to recuse themselves, even when their recusal was clearly warranted. In 2004, Justice Scalia insisted on participating in Cheney v. United States, despite having a close personal relationship with the defendant More recently, reports have highlighted the involvement of Justice Thomas’ wife in conservative groups that have an active interest in high-profile cases — including the very same challenge to the health-care law anticipated by the House Republicans in their letter to Rep. Smith.

By focusing on Justice Kagan in particular, Republicans are clearly attempting to draw attention away from the justices who actually do deserve closer scrutiny. At the very least, Republicans hope to establish a “both sides do it” media narrative to make other challenges appear every bit as partisan as their own.More important, however, these inquiries into Justice Kagan’s behavior gloss over the fundamental, non-partisan problem: Supreme Court justices are not subject to the same ethical rules as all other federal judges and are allowed to follow (or ignore) the ethical rules as they see fit. Both Justices Scalia and Thomas have shown that the self-policing requirement is inadequate. Without fundamental change to the ethical rules that pertain to Supreme Court Justices, these inquiries – whether warranted or not – will continue.

Today’s New York Times carries an editorial on judicial ethics that begins:

The court cannot maintain its legitimacy as guardian of the rule of law when justices behave like politicians. Yet, in several instances, justices acted in ways that weakened the court’s reputation for being independent and impartial.

This, recall, was the term in which… Justices Scalia and Clarence Thomas each drew fire for attending separate meetings hosted by the conservative Koch brothers. Justice Thomas has also been made to defend the political activism of his wife, Virginia, and, in recent weeks, faced questions about his entanglement with Harlan Crow, a benefactor of conservative causes.

The [Harlan Crow] project throws a spotlight on an unusual, and ethically sensitive, friendship that appears to be markedly different from those of other justices on the nation’s highest court.

There is no mandatory code of conduct for Supreme Court justices, but that doesn’t mean they don’t have to follow the Ethics in Government Act of 1978, which requires disclosure of income, gifts, reimbursements, and certain financial interests of spouses. As more and more information comes to light about Justice Thomas’ relationship with conservative Republican donors and fundraisers, questions about his adherence to the law continue to surface.Click here to read the rest of today’s New York Times editorial.

Opponents of marriage equality suffered a defeat today when their bigoted attempt to disqualify the judge who decided the Prop 8 case failed. Judge Ware, Chief Judge for the Northern District of California, denied the motion to disqualify Judge Vaughn Walker on the basis that he is gay. They argued that Walker should have been forbidden from hearing the case on the grounds that his sexual orientation constituted a conflict of interest.

Rejecting this argument, Judge Ware held that:

[T]he presumption that “all people in same-sex relationships think alike” is an unreasonable presumption, and one which has no place in legal reasoning. The presumption that Judge Walker, by virtue of being in a same-sex relationship, had a desire to be married that rendered him incapable of making an impartial decision, is as warrantless as the presumption that a female judge is incapable of being impartial in a case in which women seek legal relief.On the contrary: it is reasonable to presume that a female judge or a judge in a same-sex relationship is capable of rising above any personal predisposition and deciding such a case on the merits. The Motion fails to cite any evidence that Judge Walker would be incapable of being impartial, but to presume that Judge Walker was incapable of being impartial, without concrete evidence to support that presumption, is inconsistent with what is required under a reasonableness standard.

Alliance for Justice applauds the denial of the recusal motion. The effort to disqualify Judge Walker, while misguided, highlights the importance of having disqualification motions decided by an uninterested judge. Currently, Supreme Court Justices are allowed to make their own decisions on when to step aside from a case. If a case before the Court could create a conflict of interest for one of the justices, he or she makes the decision whether or not to recuse, without being required to disclose his or her reasoning, and the parties in the case have no recourse for appealing that decision.

It is only right that we expect the justices of the Supreme Court to be subject to the same ethical standards to which we hold Judge Walker and every other federal judge.

Supreme Court Justice Samuel Alito admitted yesterday that he unlawfully heard a case involving Disney subsidiary ABC while he owned Disney stock. Federal law requires Supreme Court justices to recuse themselves from hearing a case if they have “a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding.”

FCC v. Fox Television Studios involved a challenge to FCC regulations banning “fleeting expletives” during television broadcasts. The FCC fined several stations, including ABC, for single instances of performers uttering foul language during broadcasts. The stations challenged the fines on First Amendment grounds. The Supreme Court rejected the challenges in a 5-4 vote in which Justice Alito voted with the majority.

Justice Alito stated that he was not aware of the conflict when he heard the case in 2008. Nonetheless, had one of the parties filed a motion to recuse, Alito would have been the sole decisionmaker to determine whether his stock holdings required him to recuse. (Of course, the parties would be unlikely to know of Justice Alito’s holdings since he had forgotten himself, but recusal motions can be filed and applied retroactively. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847 (1988)).

Recent reports indicate Justice Breyer sold between $15,000 and $50,000 in Wal-Mart stock prior to hearing Wal-Mart v. Dukes, which is the proper course of action if a Justice wants to avoid recusal. If Breyer had kept his Wal-Mart stock, however, he also would have been the sole person to decide whether to recuse. Had he chosen to hear the case in violation of the rules, the only recourse would be impeachment. Unlike lower courts, a Supreme Court justice’s recusal decision is not reviewable.

Both cases demonstrate the need for stronger ethics and recusal standard that will hold the Supreme Court to the same standards by which lower courts must abide. Click here for more information about AFJ’s work on judicial ethics.

The LA Times this week examined the issue of ethics at the Supreme Court.

The Code of Conduct for United States Judges was established by the U.S. Judicial Conference and covers all federal lower court judges. Among other things, the code says that “a judge should avoid impropriety and the appearance of impropriety in all activities.” Supreme Court justices insist that they too are guided by the code, but when it comes to ensuring public confidence, voluntary compliance is no substitute for mandatory adherence.

Earlier this year, Rep. Chris Murphy of Connecticut introduced a bill that would place the nine justices of the Supreme Court under the same Code of Conduct that applies to every other federal judge.

Washington College of Law Professor Herman Schwartz today authored an op-ed in Politico, calling for the application of mandatory ethical rules to justices on the Supreme Court. Comparing the justices’ lifetime tenure and immense power to the closest thing America has to “absolute monarchs,” Schwartz notes that in return, we expect them to act ethically.

Today, Supreme Court justices are subject to virtually no ethical standards — except those they impose on themselves. That is not good enough.

The official Code of Conduct for United States Judges is not applicable to justices. It should be. Though legally unenforceable, it establishes specific standards of conduct that no justice is likely to ignore as casually as some seem to do now.

In today’s column, Schwartz goes on to detail a number of examples of justices engaging in conduct that would likely violate the Code of Conduct, if it applied to them, such as Justice Alito headlining a fundraising event for the conservative American Spectator, and Justices Thomas and Scalia attending a political strategy meeting organized by the Koch brothers:

We don’t know why Scalia and Thomas were at these partisan meetings and what they did. And there is no established procedure for finding out. Supreme Court justices answer to no one for what they do.

When their conduct is questioned, they respond either in self-righteous indignation (as Scalia has) or charge their questioners with being “bent on undermining the court” (as Thomas has) or just dismiss the matter as “not important” (as Alito did).

There is no justification for such arrogance. The justices are public servants and should be just as responsive to valid questions about the propriety of their conduct as the lowest GS-1.

What seems beyond dispute is that all three justices engaged in conduct inconsistent with the Code of Conduct for United States Judges, which requires that a judge “not personally participate in fundraising activities; or use or permit the use of the prestige of judicial office for that purpose, … make speeches for a political organization or attend or purchase a ticket for a dinner or other event sponsored by … an entity whose principal purpose is to advocate for or against political candidates.”

For reasons unknown, however, neither this code nor any other applies to Supreme Court justices. According to court spokeswoman Kathy Arberg, “justices look to the code for guidance.” Some justices apparently don’t look often.

Schwartz also went on to call for a process of oversight for recusal decisions at the Supreme Court, where none exists now. Currently, each justice is allowed to decide for him or herself whether or not to recuse. Schwartz explains that this runs afoul of a longstanding principle: “it is axiomatic that no one should be a judge in his or her own case.” To remedy this problem, he suggests there be a randomly selected panel of Supreme Court justices, including retired justices, to decide recusal requests.

Schwartz ended by calling on Congress to remedy this problem by passing legislation that would make the Code of Conduct applicable to the Supreme Court, and revising the recusal process.

No one expects Supreme Court justices to live apart from society. But when they allow themselves to be “featured” at political fundraisers and strategy sessions or don’t withdraw from cases where they seem to have a conflict of interest, they truly “undermine the court.”

Congress should move quickly on this matter — it is time for the justices to live by the same rules as all other federal judges.

Politico yesterday ran an article describing the efforts on both the left and the right to force the recusal of certain justices from the upcoming challenge to the Affordable Care Act, which could be heard in the Supreme Court as early as next October. Conservatives have argued that Justice Kagan should recuse herself because she was Solicitor General while the case was active within the Department of Justice, while progressives have argued that Justice Thomas should recuse due to fact that his wife earned over $700,000 lobbying against the passage of the law. Neither Justice has recused from the case and neither is likely to do so.

Legal ethicist Stephen Gillers predicted that whichever way the case comes out, the losing party is likely to attack the integrity of the decision on the basis that Justices Kagan or Thomas (depending on which side prevails) should have recused from the case.

Regardless of whether one agrees with these arguments, under the current system the only arbiter of the facts and legal issues raised by recusal motions is the accused justice, who may deny a motion without issuing a written explanation. Continuing to allow each individual justice to have the final and only say as to whether they might appear biased risks the continued erosion of public confidence in the integrity of the Court as an institution, and heightens fears that the Supreme Court has become inappropriately politicized.

That is one reason why Alliance for Justice is calling for reforms to the Court’s recusal process that would create more transparency and accountability around a justice’s decisions not to recuse from a case. The current procedure governing recusals should be modified to provide for some method of review of an individual justices’ decision not to recuse. Such a process would help ensure the recusal statute’s “appearance of bias” standard is applied, thereby strengthening the ethics of the Court.

To learn more about ethics on the Supreme Court, and the reforms called for by Alliance for Justice, click here.

Last week, opponents of same-sex marriage filed a desperate, bigoted recusal motion alleging that Judge Vaughn Walker, who overturned California’s gay-marriage ban, should have been forbidden from hearing the case on the grounds that his sexual orientation constituted a conflict of interest.

The claim is bogus. It is well established that personal characteristics, like race, sex, ethnicity, religion or sexual orientation, do not by themselves invoke the rule that judges must step aside if their “impartiality might reasonably be questioned.”

Our justice system relies on trusting members of the nation’s diverse bench to put aside their personal characteristics and abide by their duty of even-handedness. Any other approach would invite foolish and unacceptable results — female judges being kept from hearing rape or sexual discrimination cases, or black judges from hearing cases involving racial bias or civil rights.

Vacating a judgment, however, is an extraordinary remedy, and courts have in many instances declined to throw out a judgment even after concluding that a judge should have disqualified himself. It is not called for here. The California-based federal appeals court is already reviewing this decision — and it should uphold it.

These editorials are both correct that there is no conflict of interest in this case. However, our legal system does provide a procedure to review Judge Walker’s decision not to recuse himself.

The same cannot be said for those decisions made by justices of the Supreme Court, who are their own final arbiters on matters of recusal. If a case before the Court could create a conflict of interest for one of the justices, he or she makes the decision whether or not to recuse, without being required to disclose his or her reasoning, and the parties in the case have no recourse for appealing that decision.

It is only right that we expect the justices of the Supreme Court to be subject to the same ethical standards to which we hold Judge Walker and every other federal judge.

Last August, California District Court Judge Vaughn Walker struck down Proposition 8, California’s 2008 referendum banning same-sex marriage, as unconstitutional. While the case is on appeal, Prop 8 supporters have filed a motion arguing that Judge Walker’s ruling should be vacated because his long-term, same-sex relationship created a conflict of interest requiring recusal from the case.

Today on the Washington Post’s website, Adam Serwer dismantles these arguments. Serwer writes that Prop 8 supporters “are reduced to arguing, essentially, that Walker’s ruling should be vacated because he is gay.” He adds that this “faulty legal reasoning” does nothing to convince anyone that the pro-Prop 8 crowd’s marriage stance “amounts to anything other than prejudice.”

The problem is that this same logic could be applied to a straight, married judge hearing the case. After all, supporters of the same-sex marriage ban are arguing that marriage equality is so damaging to the institution of marriage that the government has a vital interest in making sure gays and lesbians can’t get married. That means that a straight, married judge couldn’t be expected to be impartial, either — after all, according to supporters of Prop 8, “the further deinstitutionalization of marriage caused by the legalization of same-sex marriage,” would directly impact married heterosexuals. Therefore, a heterosexual, married judge could be seen as having just as much “skin in the game” as Judge Walker.

Tomorrow, the Supreme Court will hear oral arguments in Nevada Commission on Ethics v. Carrigan. The case will determine the validity of a state statute requiring legislators to recuse themselves from voting on measures in which they have a conflict of interest. Ironically, while accepting a case to evaluate recusal standards for legislators, the justices oppose any oversight of their own recusal decisions.

Michael Carrigan, the respondent in this case, is a member of the City Council of Sparks, Nevada. Carrigan’s vote in favor of the construction of a hotel-casino was challenged on the grounds that the vote occurred after the developer hired Carrigan’s longtime friend and campaign manager. The State Ethics Commission found that Carrigan violated a catch-all provision in the recusal statute by voting on the development because it would financially benefit his close confidant. Carrigan challenged the Commission’s finding, claiming that the law violated his First Amendment right to political speech. The Nevada Supreme Court agreed, finding that the catch-all provision was too broad under a strict scrutiny analysis.

In its appeal, the Commission argues that content-neutral legislative recusal rules have a long history in the United States and that there is no personal First Amendment right to vote in a legislature. The Commission also argues that a strict scrutiny standard is too harsh and would “needlessly endanger a wide range of recusal provisions.”

The justices of the Supreme Court also operate under recusal standards, but there is no process to review decisions, as there is in the Carrigan case. Each justice decides on their own whether a conflict of interest exists, and their individual judgment is final. This violates the longstanding principle that no one should be a judge in his or her own case. It is even more important for ethical issues, which evaluate the appearance of bias as seen by outsiders. Judicial integrity depends on how the Court appears to others, not on how the justices feel about themselves.

Court-watchers have been growing more and more concerned over the increasing politicization of the Supreme Court, as exemplified by recent accounts of overtly partisan activities.

Leading the call for reform was a group of 135 law professors from all across the country. They sent an open letter to leaders in the US House and Senate. And two weeks ago, Alliance for Justice joined Congressman Chris Murphy to announce legislation that would bolster the Supreme Court’s recusal process and make the nine justices subject to the same mandatory code of conduct that applies to every other federal judge. Since then, others have added their voices in blogs, petitions, letters to their representatives, and the pages of local newspapers.

Here are some of the must-read stories on ethics reform in just the last two weeks:

On Tuesday, Congressman Murphy introduced legislation that would require the Supreme Court to adhere to the same mandatory Code of Conduct that already applies to every other federal court. The Supreme Court Transparency and Disclosure Act (HR 862) would also tackle issues surrounding the recusal process for justices.

Speaking at an event announcing the bill, AFJ’s Nan Aron observed, “There are more mandatory ethics rules governing paid congressional interns than there are for justices of the Supreme Court.” Supreme Court justices currently have no mandatory ethical code.

More than 100 law professors have already urged Congress to take action on Supreme Court ethics as questions have been raised about certain justices’ participation in partisan political events.

You can read more on judicial ethics, including the law professors’ letter and more media coverage in the new Alliance for Justice ethics resource center.

There have been dozens of stories written in the past few weeks about whether or not several Supreme Court justices have been upholding the high ethical standards we expect of our nation’s highest court. The reports have looked at the justices’ participation in political activities and fundraising events, as well as questions related to whether justices should recuse themselves — or should have recused themselves — from cases before the Court.

Disturbed by these accounts, 107 law professors from 76 law schools all across the country have come together to voice their concern and suggest solutions. In an open letter to the chairmen and ranking members of the House and Senate Judiciary Committees, the professors lay out weaknesses in the ethics rules and recusal process governing Supreme Courts justices, and propose reforms, including that the justices be made subject to the same mandatory code of conduct that governs all other federal judges.

The law professors’ letter is not just a wake-up call; it’s also a starting point. This unbiased, non-political, diverse group of experts came together to propose a common-sense solution aimed at bringing more transparency to the Court and restoring public confidence in its deliberations and decisions.

The letter recommends four concrete reforms:

Apply the Code of Conduct for United States Judges to Supreme Court justices;

Establish a set of procedures to enforce the Code’s standards as applied to Supreme Court justices;

Require a written opinion when a Supreme Court justice denies a motion to recuse; and

Determine a procedure, or require the Court to do so, that provides for a review of a decision by a Supreme Court justice not to recuse himself or herself from a case pending before the Court

The letter, along with news articles and other resources on Supreme Court ethics, can be found online at the Alliance for Justice website.

We expect our courts to be impartial and independent – it’s essential to the public’s faith in the judicial system. That’s why federal judges must adhere to a Code of Conduct that requires judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and explicitly bans political activity.

Shockingly, these rules do not apply to the Supreme Court.

Likewise, when it comes to deciding whether or not to sit on a case in which his or her impartiality has been called into question, a Supreme Court justice accused of bias has the final say – there’s no consultation, no explanation, and no appeal.

Protecting against even the appearance of bias is particularly important for the Supreme Court, as its justices are subject to the most public scrutiny and their decisions have the widest impacts. Recent activities by Supreme Court justices have called their impartiality and independence into question, undermining public confidence in our highest court.

Tell Congress to hold hearings on judicial ethics. It’s high time that justices of the Supreme Court had to follow the same ethical rules as every other federal judge.

More than 100 ethics and professional responsibility law professors have signed a letter to the House and Senate Judiciary Committees, calling for Congressional hearings to examine this issue and for legislation that would close the gap between the ethical standards applied to lower court judges and Supreme Court justices. Click here to learn more about Supreme Court ethics reform.

Supreme Court justices should not be above ethical rules. Join us and tell your representatives in Congress that the same rules that apply to all other federal judges should apply to Supreme Court justices!

This weekend, the New York Times ran a letter from AFJ President Nan Aron, responding to recent discussions of ethics on the Supreme Court.

We agree that justices needn’t live like “monks,” but the meetings attended by Justices Antonin Scalia and Clarence Thomas organized by the Koch brothers weren’t high-minded social events. Their purpose was to solicit and direct millions of dollars from wealthy donors to influence elections.

Not only did the justices lend the prestige of their office to an overtly political event, but they also interacted directly with individuals and corporations with interests before the court, and did so in a setting whose entire purpose is to influence political outcomes.

You can read the rest of the letter, plus more letters on the same topic here.